Judge: N.Y.C. Can Ban Tents From Occupy Wall Street Encampment

Additional reporting by Jeremy B. White

A trial court judge in Manhattan on Tuesday ruled that New York City can prohibit Occupy Wall Street protesters from bringing tents and other encampment equipment into their home base in Zuccutti Park, following a 1 a.m. raid clearing the space of demonstrators.

State Supreme Court Justice Michael Stallman wrote in his order, handed down Tuesday afternoon, that the Occupy Wall Street protesters failed to demonstrate that the no-camping rule that Zuccotti Park's owners enacted after the demonstrations began violate their First Amendment rights.

The protesters have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment, Stallman wrote.

Enforcement of city law and the property owners' rules for Zuccotti Park appears reasonable to permit the owner to maintain its space in a hygienic, safe and lawful condition, according to Stallman's decision.

Lawyers for the protesters say that they are looking at their options, such as an appeal, but that the order does nothing to prevent demonstrators from sleeping in the park without tents.

We're going to continue to battle in the courts because that's what we do as attorneys. And our clients are going to continue to battle in the streets, said Yetta Kurland, a Manhattan civil rights attorney representing the protesters.

Mayor Michael Bloomberg said in a statement that Zuccotti Park is now open to the entire public, including protesters.

The court's ruling vindicates our position that First Amendment rights do not include the right to endanger the public or infringe on the rights of others by taking over a public space with tents and tarps, Bloomberg said.

Judge: No First Amendment Right to Have Tents, Structures in Park

There is no First Amendment right to remain in the park with tents and structures, the order read, to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely.

Stallman was picked randomly by computer to preside over the hearing to decide whether the temporary restraining order signed earlier in the day should be extended. State Supreme Court Justice Lucy Billings signed the order early Tuesday morning, but was removed from the case before the hearing, which began at 11:30 a.m.

The order, however, has failed to prevent police from allowing protesters back into Zuccotti Park. Police have closed off access to the park with metal barricades.

About 70 people have been reportedly arrested during a violent 1 a.m. raid, among them a New York City Councilman from Northern Manhattan, Ydanis Rodriguez.

While Bloomberg had the final word on clearing out the park, its owners, Brookfield Properties, made the request.

After the eviction, protesters tried occupying Duarte Park, scaling a wall and cutting through a chain-linked fence to access a private lot owned by a nearby church. Some demonstrators made their way back to Zuccotti Park.

Meanwhile, Stallman heard arguments from lawyers representing Occupy Wall Street demonstrators and attorneys with the city and Brookfield.

Wylie Stecklow, a National Lawyers Guild attorney representing the protesters, told reporters that Bloomberg is ignoring the rule of law and in contempt of the court order.

You would hope the mayor of New York City would honor the orders coming out of the court system, Stecklow said.

Attorneys from the National Lawyers Guild, as part of the Liberty Park Legal Working Group, argued to the judge that the encampment and occupation of Zuccotti Park is a symbolic part of their right to free speech and assembly. The 1 a.m. eviction at the hands of NYPD officers were an unreasonable way to address fire hazard and public access concerns, they contended.

The power of symbolic speech is that it is a 24-hour occupation, said Alan Levine, co-counsel for the protesters. There are less drastic alternatives for dealing with issues like waste and fire hazards than clearing the park.

Brookfield's lawyer, Douglas Flaum, said that the demonstrators needed to be removed because of the fire hazards and that the public cannot access the park, violating the terms of the company's special permit with the city. They can return to continue their protests, but tents or other structures cannot be erected, Flaum said.

It is not meant to be a tent city, Flaum said. There are very significant health and safety concerns.

A city attorney, Sheryl Neufeld, said that tents were too close together, posing a fire hazard because of the cigarette butts and electrical wires strewn about the encampment.

Brookfield has not been able to live up to its obligations under its special permit with occupiers there, Neufeld said.

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